Transcript

Friday, January 23, 2009

BOB GARFIELD: From WNYC in New York, this is NPR’s On the Media. I'm Bob Garfield.

BROOKE GLADSTONE: And I'm Brooke Gladstone. The first executive order of a new president carries some heavy symbolism, and the first executive order of President Obama was to revoke an executive order signed by President Bush not long after 9/11. That order essentially overturned existing law awarding presidents new and expanded powers to withhold their records after they leave office. It even gave a president’s descendents or other surrogates the right to withhold records should the president be incapacitated, or dead. Obama rolled that power back, the first step in establishing what he called “a new standard of openness in the White House.” Now, in an effort to enhance two-way communication with the electorate, he has won the right to hold on to his precious BlackBerry. It’s a battle he’s waged for months.

PRESIDENT BARACK OBAMA: I want to be able to have voices other than the people who are immediately working for me be able to reach out and send me a message about what’s happening in America.

BROOKE GLADSTONE: But the Presidential BlackBerry poses new security and ethical issues that have yet to be ironed out. Ari Schwartz is the vice-president and chief operating officer of the Center for Democracy and Technology. Ari, welcome to the show.

ARI SCHWARTZ: Thank you for having me.

BROOKE GLADSTONE: So we've never had a sitting president who’s used email before, have we? Clinton and Bush both abstained. Was it for reasons of privacy, security, personal preference, all of the above? Were they advised not to?

ARI SCHWARTZ: They were definitely advised not to. Any risk-averse lawyer will say that a president really needs to be very careful about what they write down and what is going to be kept for the historical record. We've heard President Bush say again and again he always wanted to write to his children on email while they were at college and he wasn't able to. But that was a decision that was made looking at security issues, his own personal security, but also the security of people that he’s writing to. You have the privacy issues about what he’s writing about is going to become a public record. You have the question about the technology itself. When we use technology today, we make a mistake, we write to John Smith, some other John Smith comes up in our address book, we send to that person; it’s not that big a deal for us, even though it’s the wrong message. When a president does it, that’s obviously a huge error.

BROOKE GLADSTONE: And, of course, there’s not just security secrets. There are political secrets that perhaps a leader would like to keep out of the historical record.

ARI SCHWARTZ: You know, there’s a saying, never write anything down in Washington that you don't want on the front page of The Washington Post. And for the president, that’s magnified 100 times, so they have to be careful about any offhanded comment on how it might be taken.

BROOKE GLADSTONE: And, in fact, there were a variety of email shenanigans that went on [LAUGHS] during the Bush years. A vast acreage of email records went missing. Various members of the administration were found to be using outside email accounts for work. And that’s just not allowed, right?

ARI SCHWARTZ: Right. This actually goes back to the beginning. When we first started using email in the White House in the Reagan years, there was this question about whether the email records needed to be stored and how they needed to be stored. And reporters sued back then to try and keep historical records. They won in the courts, but still, year after year, we have the same problem. And the Bush White House in some ways hit new lows in terms of efforts that they took to store this information. Some of it was trying to work around the system by having separate accounts, but some of it was just incompetence and not being able to have the system - that the technology just was not good in the White House.

BROOKE GLADSTONE: Which brings us to President Obama’s BlackBerry. He’s fought, and he seems to have won, the ability to hang onto it. What are the advantages, first of all, of the President of The United States having a portable email machine with him at all times?

ARI SCHWARTZ: Well, the big advantage is that everyone in government should be able to use modern technology. We shouldn't be set back by questions about policy. We should be able to figure out the policy to work with the technology.

BROOKE GLADSTONE: Yeah, he said that it will allow some outside-of-the-Beltway folks to pierce the presidential bubble. But do you buy it? I mean, do you think it’s really worth the security risks?

ARI SCHWARTZ: We know that other countries have breached very, very high-level, very secure government systems, and BlackBerrys are not known to be very secure. Wireless phones are not known to be that secure. So, there is a question of how you do about getting the kind of security that a president would need.

BROOKE GLADSTONE: But even if they improve the tech part of the equation and they really have the security nailed down, how do we monitor the ethical part? We know what the new president has said he intends to do with regard to openness and transparency, but do we have any legal safeguards in place to make sure he does it? Do BlackBerry messages fall under the Presidential Records Act?

ARI SCHWARTZ: I think it’s very clear that BlackBerry messages would fall under the Presidential Records Act. The question is how is the Presidential Records Act going to be enforced? How they're going to do it in practice is something that’s going to be worked out over the first four months of the administration.

BROOKE GLADSTONE: I guess it begins with Obama announcing that his staff will not be allowed to instant message, for example. I assume that’s partly as a safeguard against the IM format. It’s too fast, it’s too informal, it’s too without context. But as we look at this rapid-fire communication, do you think the law can do a reasonable job of keeping up?

ARI SCHWARTZ: Well, it’s going to be difficult. We're going to need a lot of work in the law and the policy, specifically, and even the technology itself, in how we go about deciding what a record is and how records are stored. For example, when a government official creates a new document which might become a record eventually, they should have the ability to go through that document as they're creating it and say, here’s a section of this document. This could be a potential privacy concern. If we are going to release this publicly we want to pull this section out. It falls under the exemption in the Freedom of Information Act. We could get to a point, and the Obama Administration certainly is moving in this direction, where all records can go up automatically onto the Internet.

BROOKE GLADSTONE: And then if somebody wants the parts that have been blacked out, they go to the Freedom of Information Act.

ARI SCHWARTZ: They can challenge in the court. Correct.

BROOKE GLADSTONE: Okay. So what do you think poses the [LAUGHS] greater threat here – too much potential for secrecy or too much potential for security lapses?

ARI SCHWARTZ: To me, the biggest potential threat is that we don't try and figure out how to do this at this time, because this is going to be our only chance to give the president the ability to both create more transparency but also to create more accountability in the process. But in order to do that, you have to be able to address both the security question and how to get the president to be able to use these technologies while not disclosing so much that it ruins the process of internal deliberation.

BROOKE GLADSTONE: So you need a really good IT guy. [LAUGHS] Who does the President have?

ARI SCHWARTZ: Well, they still haven't named a chief technology officer yet, but they say that they're going to do that very soon.

BROOKE GLADSTONE: So we'll wait for the nation’s highest nerd to be appointed then.

[LAUGHTER] Thank you so much.

ARI SCHWARTZ: Thank you.

BROOKE GLADSTONE: Ari Schwartz is the vice-president and chief operating officer of the Center for Democracy and Technology, a non-partisan and non-profit group that advocates for civil liberties online.